The court upheld the eviction based on the classification of the plot in the revenue record, and reduced the damages due to the impending demolition of the house.

Sibghat Ullah Khan, J. –

Heard Shri R.D. Tiwari, learned counsel for the petitioner and learned standing counsel for the respondents. This writ petition arises out of proceedings for eviction and determination/ imposition of damages initiated by O.P. No. 3 Gaon sabha Gram Chaina (Rusaina) Pargana, Tehsil Malihabad, Distt Lucknow against petitioner under section 122-B of U.P.Z.A. & L.R. Act. The allegation against the petitioner was that he had encroached over an area of 1 biswa of plot no. 156 which was a pond and recorded as such in the revenue record and constructed a house thereupon three years before the date of notice under proforma 49-Ka. The matter was registered as case no. 214 of 1985-86 under section 122-B of U.P.Z.A. &L.R. Act Gram Sabha Rusaina vs. Baiju on the file of Assistant Collector/ Tehsildar Malihabad Distt Lucknow. The Tehsildar decided the mater against the petitioner on 22.6.1987 directing his eviction and imposing damages of Rs.5425/-. Earlier matter had been decided ex-parte which was set-aside on the application of the petitioner and thereafter it was decided after hearing him on 22.6.1987. Against the said order petitioner filed revision being case no. 287 of 1991 which was dismissed by Additional Collector Finance and Revenue, Lucknow on 27.01.1993, hence, this writ petition.

2. On behalf of petitioner mainly technical objections were taken before the courts below as well as this court. Petitioner also contended that his house was not constructed in plot no. 56, however, he did not give the number of the plot in which it was constructed. He only said that it was situated in the village abadi, however, even the number of the plot in which village abadi existed was not mentioned. He also contended that the house was built long before. At one place he said that he had constructed the house before Zamindari Abolition and at another place he stated that it was in existence for about 15 years.

3. Defect in notice and non-service of notice was also argued, however, petitioner had thoroughly been heard. Learned counsel for the petitioner has also argued that there were some discrepancies in the statement of the lekhpal. Petitioner did not deny that his house was just adjacent to the pond. As the plot in dispute is entered as pond in the revenue record which is covered by section 132 of the U.P.Z.A. & L.R. Act hence, even if house of the petitioner was built long before, land can not be settled with him. Accordingly, I do not find any error in the impugned orders directing eviction.

4. However, as far as damages are concerned both the courts below have not given any basis for imposing such huge damages. As petitioner's house is to be demolished, hence, it is not in the interest of justice to impose heavy damages. Accordingly, impugned orders are maintained in respect of eviction. However, the damages of Rs.5425/- are reduced to Rs.500/-.

5. In para 10 of the writ petition it has been stated that respondent no. 1 failed to consider petitioner's application for permission to file title suit. A copy of the application is annexure 4 to the writ petition which does not contain any such prayer. However, even without any permission, petitioner is at liberty to file regular suit based on title.

6. Writ petition is accordingly allowed in part (in respect of damages only) as above.